entirely noncommittal, followed the desire of the Senate to the neglect of the objections of the House. Writs still run in the name of the President. No business coming before the court, it adjourned on February 10. Not until its sixth term, in August 1792 at Philadelphia, did the court hear cases on their merits. Justice Cushing wrote from Boston to Jay on November 18, 1789: "As to the stile of writs & which seems to be left to the determination of the Judicial, I am informed your opinion is that it should be in the name of the President of the United States, to which our district Judges here will conform & which I think is right. . . . I observe the law has prescribed the form of an oath for us, but not said who shall administer it. I should be glad of your opinion relative to any of these matters, or any others respecting the business we [are] about to be engaged in, that you may think proper to mention." 56 The letter also refers to seals and clerk, but says nothing on gowns.

ROBES

IT is not possible to say whether at this first term the justices appeared in robes, but it is doubtful. Blair and Cushing came directly from state benches, but Blair probably did not have a gown as a judge of chancery. Cushing as chief justice in Massachusetts had worn a black robe with white bands and probably a judicial wig. He is said traditionally to have appeared at New York with these, but to have discarded the professional wig at least. Jay had been many years before chief justice of New York, but there is no available evidence that he wore a gown which might have come down from that period. In 1794 Stuart painted Jay in a black robe with salmon (or pink) facings and sleeves edged with a lighter colored silk. It has been stated that he appeared at this first term in this costume (which is now in the National Museum), and that it was that of his LL. D. degree from Dublin. He had no such degree from Dublin, and his honorary titles from Harvard, Edinburgh, and Brown all came after this first term, and in the case of the Brown degree after he sat for the portrait. Nor does the robe correspond to any such from either Harvard or Edinburgh at that time. Another tradition is that he wore the robe depicted, borrowing it from the chancellor of New York, Robert R. Livingston. Whether or not the gown of the Stuart painting was worn by Jay at this first term, it is logical to suppose it was his official robe at the time the portrait was made early in 1794. Robes are not mentioned in any of the contemporary accounts of the early terms, while they are especially mentioned in the reports of the fifth term, which was held at Philadelphia in February 1792.57 Also

Blair wrote to Wilson on February 2, 1792 (according to a copy made in 1913), that "by this time our gowns may be finished and the judges may appear in them this time." 58 Jay wrote his wife on April 24, 1792, apropos his gubernatorial candidacy: "My gown may become useless.. "',59 which in the light of the other statements is significant not only of its possession but also of its newness. Whether the robes of the associate justices were also particolored then has been a moot point; but the Sharples pastel of Justice Paterson shows a gown similar to Jay's (see p. 803), with bands in addition. Plain black, however, seems to have been the rule by 1802.

SOCIAL EVENTS

THE TERM was not without its social events. President Washington had the court to dinner on the 4th, together with the Vice President, Judge Duane, Randolph, Hamilton, Knox, the officers of the court, and two senators. 60 On the 8th the grand jury of the district court entertained the Supreme Court at Fraunces' Tavern, where thirteen toasts were drunk, the last being to the convention of Rhode Island, expressing a hope which was not at that time to be fulfilled. The French chargé also had a dinner in honor of the FrancoAmerican alliance on February 6, which the justices attended.

FIRST CIRCUIT COURTS

THE SYSTEM of circuit courts was yet to be inaugurated. According to the law, the first of these were to begin at Trenton and New York City on the 2d and 4th of April 1790. Jay, with Cushing and Duane, started the New York sessions and he then proceeded eastward with Cushing through New England. Wilson and Blair sat in New Jersey, Pennsylvania, Delaware, Maryland, and Virginia with the respective district judges, and Iredell and Rutledge in South Carolina and Georgia. The district courts of Kentucky and Maine also sat as limited circuit courts, and these regions were not visited by the justices. The printed reports of cases determined in the circuit courts run back fragmentarily to 1791; 61 but the newspapers mention a trial at the first term in New York, when two sailors were convicted of conspiracy to destroy a ship and kill the captain, and were condemned to the pillory for one hour, six months' imprisonment, and whipping. The trial lasted four hours.62 The charges were a prominent feature of these early circuit courts, the importance of which will be considered later (see p. 430).

Departmental and Interdepart

mental Precedents

SOCIAL VESTIGES

THE IMPOSITION of an active government of separate powers and operating directly upon the people upon the existing political structure of the country called for adjustments in various respects, both as to the relations within and between the new departments and between the states and these departments or the national government as a whole. The chapter on the organization of Congress has treated of the relation between the two houses and the method of their intercourse; there remains for consideration their connections as separate houses and as Congress with the executive and the judiciary.

The preparations to receive Washington upon his arrival as President-elect and the ceremonies of the inauguration brought up the question of his title and caused a great to-do, which, after so many years of democratic thought and action, seems in the retrospect to have been a tempest in a teapot, but which was regarded seriously enough at the time. Almost all of the participants in it had been brought up in a colonial society, at the head of which in each colony was a governor considered usually as the British king's personal representative, and, as such, of a vice-regal position, surrounded by a corresponding ceremoniousness and titles. Society was political as well as social; and there was a considerable contrast between those who did not see the necessity of dropping the social customs of the old régime along with its political control, and those who saw in the retention of any of the "trappings of royalty" an evil that would destroy the republic and restore an aristocratic control, if not a monarchical one.

The Samuel Adamses and the Patrick Henrys of this period were prone to see such danger in any attempts to retain customs

and forms that had an association in men's minds with the imperialistic elements of the discarded colonial government. To them the motto on the unused reverse of the Great Seal, "novus ordo seclorum," called for a clean sweep. Evidences of this fear are seen in the prohibition in the Constitution of any grants of nobility or of the official acceptance of titles without the permission of Congress, and the proposal by state ratification conventions of an amendment forbidding Congress ever to give such permission. Still later, on May 1, 1810, Congress proposed an amendment to the states providing that anyone who accepted a foreign title or honor should forfeit his citizenship thereby, but it has never been ratified. The radicals were not likely to be constructive in their statesmanship; and many of the conservatives, intent upon working out a practical system of steady government, were neglectful of those principles of popular rule which have become so closely associated with Jefferson's claim to fame and, as Maclay expressed it, were "fond of the old leaven."

CONGRESS AND PRESIDENTIAL TITLES

IT WAS natural enough, therefore, that the question of official title should have turned up in the early consideration of the relations of Congress with the President. On April 23, 1789, in the Senate a resolve was voted: "That a committee, consisting of three members, be appointed to consider and report, what . . . titles will be proper to annex to the offices of President and Vice President of the United States; if any other than those given in the Constitution." This was a part of the resolution for a committee to prepare for the inauguration. Lee, Izard, and Dalton were appointed. The next day Lee proposed that the House be asked to appoint a committee to confer on the matter of the whole resolution. Maclay, who said that Vice President Adams was responsible for the "base business," moved to strike out all reference to titles. Carroll supported him, but the motion was lost, the words "style or" were added before "titles," and the resolution sent to the House. Maclay professed to doubt Lee's integrity in the business, and knew that the "giving of titles would hurt us." Evidently, too, Maclay was not unwilling to make an issue of it. The House appointed Benson, Ames, Madison, Carroll, and Sherman.

After the inauguration, the two houses appointed committees to prepare replies to the inaugural address. Adams called it "his most gracious speech," and when this phrase occurred in the minutes the next day Maclay objected and succeeded, over Adams' protest, in getting the words erased from the journal. On May 5 the House

TITLES FOR THE PRESIDENT

375

committee reported the concurrent resolution on titles, which that body adopted: "That it is not proper to annex any style or title to the respective styles or titles of office expressed in the Constitution." 2 On that same day its reply to the President's address was reported by Madison and agreed to. It was headed: "The Address of the House of Representatives to George Washington, President of the United States. Sir:" This address was presented on May 8 in a room in Federal Hall, Washington expressing a willingness to receive it wherever the House should decide. Maclay declared in his journal on May 1 that he would "through the Speaker and other friends, get the idea suggested of answering the President's address without a title, in contempt of our deliberations." His instrumentality in the decision of the House may, however, be questioned; the committee that reported the matter was not one likely to be influenced by him.

On May 7 the Senate received the concurrent resolve and took it up the next day when, as stated by Maclay, it was the subject of a long debate in which he and Carroll alone seem to have supported the report. The Senate rejected it, and also a motion for "His Excellency," and finally appointed another committee to bring in a title for the President. On May 9 the Senate received the message from the House announcing that body's approval of the concurrent resolve; and the committee appointed the day before, Lee, Ellsworth, and Johnson, reported a title. There was further debate during which, according to Maclay, Adams haranged for forty minutes. Postponement was finally voted, and the reporting committee was ordered to confer with the House committee on the disagreement, being, by an amendment, to consider the proper title in the future. Evidently Maclay thought that the tide was turning in his favor. He "had a fine, slack, and easy time of it to-day." 5

The House on May 11 took up the Senate's disagreement and desire for a conference. Parker of Virginia moved that the House "deem it improper to accede to the proposition made by the Senate, Considerable debate ensued. Sherman and Clymer shared Parker's opinion, but Madison, while stating the attitude of the House, had a word to say respecting inter-house courtesy:

I may be well disposed to concur in opinion with gentlemen that we ought not to recede from our former vote on this subject, yet at the same time I may wish to proceed with due respect to the Senate, and give dignity and weight to our own opinion, so far as it contradicts theirs, by the deliberate and decent manner in which we decide. For my part, Mr. Speaker, I do not conceive titles to be so pregnant with danger as some gentlemen apprehend. . . . I am not afraid of titles, because I fear the danger of any power they could confer, but I am against them because they are not very reconcilable with the nature of our

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